# Opposition Brief — Joint School District No. 241 v. Harris

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1154

## Text

Nos. 94-1268 & 94-1314

IN THI
Suprene Court of the Tnited States
{ BI TERM, 199

JOINT SCHOOL DISTRICT NO. 24]

PHYLLIS WRIGHT HARRIS

ind on behalf of her child SAMUEL HARRI

CITIZENS PRESERVING AMERI
HERITAGE, IN¢

PHYLLIS WRIGHT HARRI

rnd on behalf of her child SAMUEL HARRI

BRIEF IN OPPOSTTION

Steven R yshapiro rt |
American Civil Liberties |
Foundation \met n ¢
13) West 43 Street } maat
New York. New York 100% HR75 |
(212) 944-9800 Denver. (

BEST AVAILABLE'COPY

QUESTIONS PRESENTED

1. Whether public school officials, who must and do
retain a high degree of control over the precise contents of a
school commencement program, can authorize students to
transform this government program into a religious service
without thereby violating the Establishment Clause.

2. Whether a government program in which only one
religious group is allowed to speak can be Considered a
public forum.

3. Whether the Free Speech Clause authorizes a reli-
gious group to use a government program for proselytizing,
even though this clearly violates the Establishment Clause.

LIST OF PARTIES

Phyllis Wright Harris filed this case, as her complaint
states, “on her own behalf and on behalf of her three minor
children, Beverly, Billy, and Samuel Harris." At the time of
filing, all three children were students in the defendant
school district. However, Beverly has since graduated from
high school and Billy no longer matriculates in this school
district. The only remaining student with standing to pursue
this case is Samuel Harris, and Samuel graduates on June 2,
1995.

The caption used by the Harrises on this brief in oppo-
sition reflects the current status of the parties. For some un-
explained reason, petitioners and cross-petitioners have de-
leted Billy from their captions, but not Beverly.

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TABLE OF CONTENTS

py Ps Bis) ey: Ree
STATEMENT OF THE CASE.............

REASONS FOR DENYING THE WRIT ..........

I. THERE IS NO CONFLICT AMONG THE
CIRCUITS ON THE ISSUE PRESENTED
SR ee rl a

Il. THE DECISION BELOW IS CORRECT
AND CONSISTENT WITH THIS
CORMRE © PRREUMOINED® «0. ee eee

A. Petitioners’ Policy Violates The
Establishment Clause ..............

B. The Free Speech And Free Exer-
cise Claims Raised In This Case
By Cross-Petitioners Have Been
Repeatedly Rejected By This
Court And Were Properly Reject-
ed By The Court Of Appeals .....

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TABLE OF AUTHORITIES

Cases

Abington School District v. Schempp,
374 U.S. 203 (1947)

Bethel School District v. Fraser,
478 U.S. 675 (1986)

Board of Education v. Mergens,
496 U.S. 226 (1990) .

Committee for Public Education and
Religious Liberty v. Nyquist,
413 U.S. 756 (1973)

Cornelius v. NAACP Legal Defense
& Educ. Fund, Inc.,
473 U.S. 788 (1985)

County of Allegheny v. American
Civil Liberties Union,
492 U.S. 573 (1989)

Edwards v. Aguillard.,
482 U.S. 578 (1987)
Engel v. Vitale,

370 U.S. 421 (1962)

Epperson v. Arkansas,
493 U.S. 907 (1968)

Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974)

Jones v. Clear Creek Independent
School District,

97% F.2d 963 (1992),

cert. denied, 113 S.Ct. 2950 (1993)

Page

9

Lebron v. National Railroad
Passenger Corp.,
63 U.S.L.W. 4109 (Feb. 21, 1995)

Lee v. Weisman,
$65 U.S.
112 S.Ct. 2649 (1992)

Shelton v. Tucker,
364 U.S. 479 (1960) .

Stone v. Graham,
449 US. 39 (1980)

Tinker v. Des Moines Independent
Community School District,
393 U.S. 503 (1969)

Weinstein v. Bradford,
423 US 147 (1979)

West Virginia Board of

Education v. Barnette,
319 US. 624 (1943)

Page

6,

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10

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Respondents submit this brief in opposition to the peti-
tion and cross-petition for certiorari in Nos. 94-1268 and
94-1314.

STATEMENT OF THE CASE

Petitioners’ statement of the case is incomplete. Several
critical facts are omitted, and some statements are erroneous.
A more accurate statement follows.

1. This case was filed on April 12, 1991, by Phyllis
Wright Harris on behalf of herself and her three children,
Beverly, Billy, and Samuel Harris. Beverly graduated in
1991 from Grangeville High School; Billy no longer attends
school in this district, and Samuel, a senior this year, gradu-
ates on June 2, 1995. Thus, after that date, none of the
Harris children will any longer be a student in petitioners’
school district.’

2. Beverly Harris was a senior at Grangeville High
School when this case was filed in 1991. School officials
permitted Beverly’s class to vote on whether religious prac-
tices would be inserted into the school’s upcoming com-
mencement ceremony. Beverly's class opted to insert two
prayers and one religious hymn into the program. On
Beverly’s behalf, a preliminary injunction was sought in dis-
trict court to halt these religious activities, but the court
denied the injunction. Beverly, therefore, had no choice but
to endure religious practices in order to participate in one of

' According to cross-petitioners, this case presents a “timely opportunity"
to decide certain First Amendment issues. Cross-Pet. at 14. Given
Samuel's graduation date, this is not necessarily true. Indeed, under this
Court’s decision in Weinstein v. Bradford, 423 U.S. 147 (1979), it
would appear that this case may well become moot when Samuel grad-
uates.

the most important events of her life.’

3. This Court has held that “:eachers and principals
must and do retain a high degree of control over the precise
contents of the [graduation] program." Lee v. Weisman, 505
U.S. __, 112 S.Ct. 2649, 2660 (1992). It is therefore signif-
icant that the school district in this case concedes that it "al-
low[s] the students to dictate the content of graduation," and
that "[n]o implied restrictions are placed on the graduating
seniors" in this regard. Pet. at 6. The principal of Grange-
ville High School testified that, under the school district’s
written policy, students are authorized to transform the
school’s graduation program into “a religious service." CR
5] at 112.° The superintendent of schools, who wrote this
policy, testified that the policy authorizes students to dictate
the content of these ceremonies, "no matter how religious
they are." CR 50 at 58.

4. As the court below noted, the public school under-
writes these commencement programs with taxpayer funds,
providing “the building, chairs, platform for speakers, sound
system, secretarial help, and janitorial staff," and also de-
frays the cost of the written Program in which the prayers
and hymns are listed. Pet.App. B-21, B-19. Thus, the most
important facts are not in dispute: Children are allowed, by
a simple majority vote, to transform a government program
into a religious service (containing as much denominational
dogma as they wish); paid for by government funds; spon-
sored by the school district; in which school officials partic-
ipate, and over which these officials have ultimate control.

5. The prayers that were given during Beverly’s cere-

* Petitioners state that "Mrs. Harris’ oldest child [Beverly] left Grange-
ville High before graduating." Pet. at 7-8. This is erroneous.

* The designation "CR" refers to the clerk’s record in the district court.

2

a
ene een. on

mony* were Christian prayers. They invoked Jesus and the
Holy Spirit. They used the word "Lord" 15 times. CR 48
at 7. The religious hymn that also was inserted into Bever-
ly’s graduation program contained such messages as "We
want You to find us living what is true. Lord, remind us
who we are in You." No evidence was introduced in the
district court indicating that this hymn had anything other
than a religious purpose and effect.

6. In support of her motion for a preliminary injunc-
tion in 1991, Beverly testified: "I feel like school officials
are telling me that I am not as good as the other students. |
also feel as if I am being pressured to conform, and to ac-
cept someone else’s version of what is an acceptable reli-
gious belief." Beverly also testified that, when she voiced
her opposition to these religious activities during the
school’s voting process, she was retaliated against by other
students. “Now I am being treated like an outcast." CR
1(F).

7. Petitioners state that Grangeville’s 1990 senior class
(when Beverly was a junior) "declined to include any non-
secular music, prayer or speech" in the school graduation
program. Pet. at 7. This is erroneous. As the written Pro-
gram records, this event contained an invocation delivered
by clergy and students sang a "Musical Benediction." CR
48, p. 8, No. 10.

8 Cross-petitioners (the student-intervenors) claim
that "no one who attends a graduation ceremony in District
No. 241 is ever asked to participate in any prayer during the
graduation ceremony." Cross-Pet. at 3. This statement is

‘ The only hearing held in this case occurred in 1991. Accordingly, the
facts adduced at this hearing constitute the record. All parties concede
that the religious activities that occurred during Beverly's ceremony are
illustrative of the religious activities authorized by the school district’s
policy.

misleading. Remaining respectfully silent during prayer is
conventionally viewed as “signif[ying] .. . participation or
approval of it." Lee v. Weisman, 112 S.Ct. at 2658. In this
sense, Beverly was not only asked to -- she was compelled
to -- participate in two prayers and a religious hymn at her
graduation. Similarly, Samuel’s classmates have voted to
compel him to participate in religious activities this June 2.
Any notion that these children were not asked to participate
in religious activities "is formalistic in the extreme." /d. at
2659.

9. Cross-petitioners claim that the Grangeville High
School graduation ceremony is a public forum. The record
refutes this claim. It is undisputed that a religious majority
dictates the ceremony’s content and monopolizes the po-
dium. Only one view is heard, and all others are barred.
Pet.App. B-27. Therefore, this is not a public forum. Even
the school district does not contend that its graduation cere-
mony is a public forum.

REASONS FOR DENYING THE WRIT

Public school students have no independent right to dic-
tate the content of a school’s commencement program. No
one in this case disputes that fact. See Lee v. Weisman, 112
S.Ct. at 2660 (school officials "must and do retain a high
degree of control over the precise contents of the [gradua-
tion] program").*

Without abdicating its ultimate authority, the Grange-
ville school district has nonetheless allowed students to “dic-
tate" the school’s graduation program. Students have even
been delegated the authority to transform the school’s pro-

* Cf Bethel School District v. Fraser, 478 U.S. 675, 683 (1986)("The
determination of what manner of speech in the classroom or in school
assembly is inappropriate properly rests with the school board").

4

gram into a religious service. Armed with this power,
Grangeville students have fashioned graduation programs
that would make the activity in Lee v. Weisman appear ster-
ile. These programs have included denominational, clergy-
delivered prayers; denominational prayers offered by stu-
dents; and religious hymns -- sometimes all in the same
program.

The Ninth Circuit was clearly correct in declaring this
scheme unconstitutional. There is no reason for this Court
to review this decision.

Il. THERE IS NO CONFLICT AMONG THE CIR-
CUITS ON THE ISSUE PRESENTED BY THIS
CASE

Petitioners and cross-petitioners contend that the deci-
sion of the Ninth Circuit in Harris conflicts with the Fifth
Circuit’s decision in Jones v. Clear Creek Independent
School District, 977 F.2d 963 (1992), cert. denied, 113 S.Ct.
2950 (1993). However, these decisions are significantly dis-
tinguishable. True, both cases involve the broad question of
school sponsorship of student-initiated prayer in school com-
mencement exercises. But the actual issue in Jones was the
facial validity of a school policy that permitted high school
seniors to deliver "nonsectarian, nonproselytizing invocations
at their graduation ceremonies." /d. at 964, 969 n.10. In
upholding this policy, the court admonished that the plain-
tiffs could seek further relief if this policy were violated.
Id. at 969 n.10.

In sharp contrast, Harris considered a policy that allows
high school seniors to inject all of the following religious
activities into the school ceremony: (1) as many denomina-
tional, proselytizing prayers as the students wish, (2) all de-
livered by clergy, and (3) an unlimited number of religious
hymns and other religious messages. As petitioners con-

cede, the Grangeville policy "does not attempt to insure
non-sectarian or non-proselytizing content" of the school’s
graduation program, and there are "[n]o implied restrictions"
on the amount of religious content it can contain. Pet. at 5.
In fact, the school district “allow[s] the students to dictate
the content of graduation." /d. at 6. There is nothing in
Jones suggesting that the Fifth Circuit would -- or that any
court would -- sustain a policy such as this. In any event,
Jones did not consider such a policy.

il. THE DECISION BELOW IS CORRECT AND CON-
SISTENT WITH THIS COURT’S PRECEDENTS

A. Petitioners’ Policy Violates The Establish-
ment Clause

Petitioners’ policy contains an inherent constitutional
flaw. It rests on an erroneous concept: that a government
activity ceases to be a government activity when a religious
majority is allowed to control it. The framers of the Consti-
tution chose a different path for our nation. "The very pur-
pose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts." West
Virginia Board of Education v. Barnette, 319 U.S. 624, 638
(1943).

Hundreds of activities long recognized as unconstitu-
tional would be officially sanctioned under Grangeville’s
scheme. All that government officials need do is bind
themselves to the outcome of a vote. If the majority then
votes to usurp the government activity for a private religious
purpose, the government would be obligated to finance and
sponsor it. In the school context, majorities could vote to
begin every class with prayer, and vote to post the Ten
Commandments in every classroom. Indeed, this same prin-

o ee ne eh aed

SS a ae eee

ciple would permit each agency of government to allow
constituents to insert their own religious activities into every
government program.

The prayers (and other religious activities) inserted by
students into Grangeville’s official graduation program con-
stitute state action in every relevant sense. They are adver-
tised on the state’s Program, included as an integral part of
the government event, and are able to be offered from this
podium only because the government has provided the fi-
nancial and supervisory resources. Moreover, given that the
government has the ultimate authority to prohibit these
prayers from the official program, the decision to include
them precludes any claim of government neutrality” To
paraphrase the Court’s most recent state action decision: "It
surely cannot be that government, state or federal, is able to
evade the most solemn obligations imposed in the Constitu-
tion by simply [deferring to a majority vote]." Lebron v.
National Railroad Passenger Corp., 63 US.L.W. 4109,
4116 (Feb. 21, 1995).

Petitioners contend that a school district can somehow
"remain neutral [while] allow[ing] the students to dictate the
content of graduation." Pet. at 6 This cannot be true
Every time children dictate the insertion of religious activity
into a school program, the school loses its neutrality. It 1s
not the prayers, of course, that violate the Constitution, it 1s
their placement into an official government program. Com-
pare Engel v. Vitale, 370 U.S. 421 (1962), with Board of
Education v. Mergens, 496 U.S. 226 (1990)

Students at Grangeville High who desire it are free to
organize a private, religious baccalaureate service before or
after graduation. But, contrary to petitioners’ assertion,

° Thus, cases such as Jackson v. Metropolitan Edison Co., 419 U.S. 345
(1974), are patently inapposite

school officials violate their constitutional obligation of
neutrality when they allow prayers to be included in the
government program. “The Constitution mandates that the
government remain secular, rather than affiliating itself with
religious beliefs or institutions ...." County of Allegheny
v. American Civil Liberties Union, 492 U.S. 573, 610
(1989). See also Abington School District v. Schempp, 374
U.S. 203, 226 (1947)("In the relationship between man and
religion, the State is firmly committed to a position of neu-
trality").

Government neutrality is particularly important in the
public school. "“‘[T]he vigilant protection of constitutional
freedoms is nowhere more vital than in the community of
American schools." Epperson v. Arkansas, 493 U.S. 907,
104 (1968), quoting Shelton v. Tucker, 364 U.S. 479, 487
(1960). See also Edwards v. Aguillard, 482 U.S. 578, 583
(1987)("The Court has been particularly vigilant in monitor-
ing compliance with the Establishment Clause" in public
schoois).

Petitioners’ religious activities -- and these prayers are
the school district's -- violate the Establishment Clause.
The fact that students initiate them does not change the fact
that they are being offered as part of the government’s own
program, thereby forfeiting government neutrality. Church
and state have been joined.

B. The Free Speech And Free Exercise Claims
Raised In This Case By Cross-Petitioners
Have Been Repeatedly Rejected By This
Court And Were Properly Rejected By The
Court Of Appeals

Petitioners make no Free Speech or Free Exercise argu-
ment, but cross-petitioners do. Cross-petitioners contend
that, even if these religious activities otherwise constitute

Establishment Clause violations, they are saved by the free
speech and free exercise rights of the students who want
these prayers included in the school program.

This argument is wrong on the facts and wrong on the
law. It is wrong on the facts because cross-petitioners are
not merely seeking the right to engage in private religious
expression. They are demanding that the state promote,
sponsor and finance that religious expression by including it
in an official school program. It is also wrong on the law.
As this Court pointedly noted in Abington School District v.
Schempp, 374 US. at 226, "jw)hile the Free Exercise
Clause clearly prohibits the use of state action to deny the
rights of free exercise to anyone, it has never meant that a
majority could use the machinery of the state to practice its
beliefs" (emphasis in original).

Cross-petitioners’ only response to this well-established
law is to argue that a tension exists in this case between
their individual rights and the Establishment Clause. But a
similar tension exists in a// Establishment Clause cases. By
definition, the Establishment Clause restricts a certain man-
ner of expression: namely, religious expression sponsored
by the state. Free speech stops at this wall. Simply put,
there is no right to compel a violation of the Establishment
Clause. See Committee for Public Education and Religious
Liberty v. Nyquist, 413 U.S. 756, 788 (1973)(citations
omitted).

[TJhis Court repeatediy has recognized that ten-
sion inevitably exists between the Free Exer-
cise and Establishment Clauses .... As a re-
sult of this tension, our cases require the State
to maintain an attitude of "neutrality," neither
"advancing" nor "inhibiting" religion.

See also West Virginia Board of Education v. Barnette, 319
U.S. at 638, Lee v. Weisman, 112 S.Ct. at 2657-58, 2660.

Cross-petitioners either ignore or fail to grasp the dis-
tinction between private religious speech and state-sponsored
religious activity. Thus, they claim: "Where the impetus
for religious activity is purely of private initiative and de-
sign ... there is no state action and the Establishment
Clause does not proscribe the conduct." Cross-Pet. at 19.

The flaw in that reasoning is apparent. A majority can
initiate and design religious practices, but it cannot use the
machinery of the state to promote them. Prayers (and other
religious practices) inserted into a public school graduation
program cross the line from private speech to public ritual.’
The notion that publicly sponsored prayers become constitu-
tional whenever the majority wants them is to say, in effect,
that our constitutional safeguards, including the Establish-
ment Clause, can be overruled by majority vote. That is not
the premise of the Constitution and it has never been this
Court’s view.

Cross-petitioners make a similarly flawed argument
when they contend that the disclaimer that appears on the
written graduation Program somehow cleanses the constitu-
tional violation occurring on the podium. However, this ar-
gument too has been consistently rejected by the Court,
which has properly recognized that no amount of disclaim-

’ Cross-petitioners make the same fundamental error in relying on
Tinker v. Des Moines Independent Community School District, 393 U.S
503 (1969), in support of their free speech claim as when they rely on
Board of Education v. Mergens, 496 U.S. 226, in the context of free
exercise. In both Tinker and Mergens, schools were constitutionally ob-
ligated to tolerate certain student speech on a nondiscriminatory basis.
Nothing in those cases support what the students want to do here: com-
pel the school to sponsor and finance their religious activity and include
it in the school’s own program. Indeed, Tinker and Mergens il\ustrate
what Grangeville’s response to this request should be.

10

ing "can blind us" to a clear Establishment Clause violation.
Stone v. Graham, 449 U.S. 39, 41 (1980).

Finally, cross-petitioners argue that Grangeville’s gradu-
ation ceremonies are public fora and, consequently, the stu-
dents’ religious practices cannot be subjected to "viewpoint-
based speech restrictions." Cross-Pet. at 20. There is no
basis in fact for claiming that this podium is a public forum.
Indeed, the school district itself eschews the notion that it
has created a public forum, given the responsibility the dis-
trict would then have to open it to unfettered discourse.

"The government does not create a public forum by in-
action or by permitting limited discourse, but only by inten-
tionally opening a nontraditional forum for public dis-
course." Cornelius v. NAACP Legal Defense & Educ. Fund,
Inc., 473 U.S. 788, 802 (1985). Neither by word nor deed
has Grangeville opened its graduation podium to unlimited
discourse. Public discourse does not occur. The only
speech permitted is the religous majority's speech. As the
Ninth Circuit correctly noted, "[n]o matter what message a
minority of students may wish to convey, the graduation
forum is closed to them." Pet.App. at B-27. This critical
fact is not in dispute, and this fact precludes the graduation
ceremony from being considered a public forum

1]

CONCLUSION

An undercurrent in the petition and cross-petition is that
barring students from having the option to include religious
activities in school programs is inimical to religion. On the
contrary, the Establishment Clause is designed to safeguard
religion from government (at the same time it safeguards
government from religious strife). "[A] union of govern-
ment and religion tends to destroy government and degrade
religion." Engel v. Vitale, 370 U.S. at 431. Students who
today vote to insert prayer can tomorrow vote to denigrate
prayer, and the strife that is likely to erupt in the school
(and in the community) is precisely what the Establishment
Clause intends to prevent.

The decision below is a faithful application of a funda-
mental principle. Accordingly, respondents respectfully re-
quest that this Court deny the petition and cross-petition for
certiorari.

Respectfully submitted,

Stephen L. Pevar
(Counsel of Record)
American Civil Liberties Union
Foundation
6825 East Tennessee, Suite 530
Denver, Colorado 80224
(303) 321-4828

Steven R. Shapiro

American Civil Liberties Union
Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: February 24, 1995

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1242%3A2. Public record. Not legal advice.